30 Wash. 325 | Wash. | 1902
The information upon which the appellant was convicted is as follows:
“Gomes now H. D. Cooley, county and prosecuting attorney in and for Snohomish county; Washington, and by this his information accuses E. J. Eenton and Edward Costello of the crime of assault with intent to commit a felony, committed as follows, to-wit: That in the county of Snohomish and state of Washington, on the 19th day of October, 1901, said E. J. Eenton and Edward Costello, in and upon the person of one Oscar Combs unlawfully and feloniously did make an assault, with intent then and there unlawfully and feloniously by violence and putting in fear, from the person of him, the said Oscar Combs, the moneys, goods, and chattels of him, the said Oscar Combs, to take, steal, and carry away; contrary to the form of the statute,” etc.
A separate trial was demanded. Costello was tried, and, before the tidal of appellant was reached, he (appellant) made application for a writ of habeas corpus before the superior judge of Snohomish county, alleging that he was unlawfully restrained of his liberty, because he had had no trial under said information, and more than sixty days’ time had passed since the same was filed. Issue of fact was joined on said application for discharge by habeas corpus, and the superior court, on March 11, 1902, dismissed the petition, and remanded the petitioner to the custody of the sheriff of Snohomish county, to which exception was then and there taken by petitioner, and he then and there immediately gave notice in open court that he appealed therefrom to the supreme court of this state. This appeal is now pending. Ho supersedeas was requested, and none was granted. Upon giving the above notice of appeal, appellant moved the court for an order dropping this cause from the trial calendar, which was denied. The
The first error alleged is that the court erred in refusing to strike this case -from the trial calendar, in overruling appellant’s objection to proceed with the trial, and in going on with the trial and proceeding to judgment and sentence after notice of appeal to the supreme court had been given in the habeas corpus case. It is the contention of the appellant that, after the notice of appeal was given, the appellant was under the sole and exclusive jurisdiction of the supreme court; that the questions as to the validity of the information and the legality of his restraint are transferred to this court for determination, and the superior court ceases to have any jurisdiction over his person or over the subject matter of the action; that, under such circumstances, the judgment and sentence of the lower court were coram non judice, and null and void; that the appeal from a judgment of remand in a habeas corpus ease by the petitioner operates as a stay of all other proceedings, and all other processes, including the warrant under the information by which the appellant was being held, and that this court became at once the legal custodian of the appellant; and that the effect of the appeal was to place the case in the same position as if it was an original application to this court for habeas corpus. Appellant cites 9 Enc. Pl. & Pr., p. 1029, to the effect that a writ of habeas corpus issued by an appellate court acts as a supersedeas suspending the powers of the court below, and all proceedings had by an inferior court after the issuance of the writ are erroneous, and coram non judice; and 15 Am. & Eng. Enc. Law (2d ed.), p. 213, to the effect that the writ of habeas corpus is paramount to and supersedes all other writs and
Appellant requested the court to instruct the jury that they could bring in a verdict of attempt to commit robbery, and the refusal of the court to so instruct is the second assignment of error. The court did instruct the jury that they could bring in a verdict of simple assault, or an assault and battery, and we think this is as far as it should have gone. The information, under the provisions of the statute, charged the defendant with an assault with intent to steal the property of another, and we hardly see how the question of assault can he eliminated from the attempt under this statute. It will be noted that the information did not charge the substantive crime, but an as
The following instruction of the court is alleged as error on the ground that it was a comment upon the testimony:
“You are further instructed that you should convict the defendant of assault, with an intent to commit robbery, if you believe from the evidence beyond a reasonable doubt that at the time in question he committed an assault, or aided or advised the assault, upon the prosecuting witness for the purpose of robbery, and that in making the assault he intended to use whatever force might be necessary to overcome the prosecuting witness and accomplish his purpose, — that of robbery.”
We are unable to see that there is any element of comment on the testimony in this instruction. The jury certainly understood, when the court said “that in making the assault” and words following it was connecting those words with the preceding portion of the instruction, “if you believe from the evidence beyond a reasonable doubt” that he did, etc.
The fourth assignment is that the court erred in charging the jury to disbelieve a witness who was mistaken, or had knowingly testified falsely, without the qualification “unless corroborated by other competent evidence.” It is a sufficient answer to this to say that no such charge was given by the court. The instruction was as follows:
“You are further instructed that you are judges of the credibility that ought to be given to the testimony of the different witnesses, and you are not bound to believe anything to be a fact because a witness has stated it to be so, provided you believe from all the evidence that such witness is mistaken, or has knowingly testified falsely.”
This was a proper statement of the law. The jury were not told in said instruction that they must disbelieve the witness, and the last proviso, “provided you believe from
The fifth assignment is that the court erred in overruling the demurrer to the information. The information in this case was sustained by this court in the case of State v. Costello, 29 Wash. 366 (69 Pac. 1099) ; but, as an independent proposition, we think the information was sufficient.
In regard to the next assignment, — that the court erred in denying appellant’s motion for a new trial, for the reason that the verdict- was contrary to law and the evidence, and the evidence was insufficient to justify the verdict,— an examination of the record convinces us that there was ample testimony to warrant the verdict.
The seventh assignment relates to the objections made to forms of questions and colloquies between the prosecuting attorney and- a witness, William Spurrell. While these questions seem to be somewhat leading, the circumstances under which the testimony was produced in court, as shown by the record, justified, we think, the questions asked.
The eighth assignment is in regard to objections to a statement made to the jury by the prosecuting attorney in reference to the law. It is frankly admitted by the prosecuting attorney that the statement made was a misstatement of the law in reference to the use of depositions, but-he asserts that he thought at the time he was stating the law correctly, and, as there seemed to be no intent to misstate the law, and as the appellant did not ask the court for any instruction on the law in that regard, we do not think that he can urge the objection here. In any event, we do not think that the statement was of sufficient importance to warrant a reversal of the case.
The last assignment is that the court erred in abusing its discretion in the severity of the sentence imposed, namely, twelve years in the penitentiary; and a very earnest plea is made by counsel for appellant for the modification of the sentence by this court. But, while twelve years seems to be somewhat severe, an examination of the record in this cause convinces us that the appellant was of a very depraved mind, and a dangerous man in a community; and that when this assault was made it was made with the knowledge that it was liable to result in loss of life. Under all the circumstances as shown by the record, we feel unwilling to disturb the judgment of the trial court in that respect.
The judgment in all things will be affirmed.
Beavis, C. J., and Fullerton, Anders and Mount, JJ\, concur,;